United States Court of Appeals 

for the Federal Circuit ______________________ 

BANNUM, INC.,

Plaintiff-Appellant

v.

UNITED STATES AND DISMAS CHARITIES, INC.,

Defendants-Appellees

______________________ 

2014-5085

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:14-cv-00140-MCW, Judge Mary Ellen 

Coster Williams.

------------------------------------------------------------------

BANNUM, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2014-5086

______________________ 
2 BANNUM, INC. v. US

Appeal from the United States Court of Federal 

Claims in No. 1:14-cv-00040-NBF, Judge Nancy B. Firestone. 

______________________ 

Decided: March 12, 2015

______________________ 

 JUSTIN HUFFMAN, Camardo Law Firm, P.C., Auburn, 

NY, argued for plaintiff-appellant in 2014-5085 and 2014-

5086. Also represented by JOSEPH A. CAMARDO, JR. 

ANTONIA RAMOS SOARES, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for defendant-appellee 

United States in 2014-5085 and 2014-5086. Also represented by RUSSELL J. UPTON, JOYCE F. BRANDA, ROBERT E.

KIRSCHMAN, JR., DONALD E. KINNER. 

ALEXANDER D. TOMASZCZUK, Pillsbury Winthrop Shaw 

Pittman LLP, McLean, VA, argued for defendant-appellee 

Dismas Charities, Inc. in 2014-5085. Also represented by

ALEXANDER BREWER GINSBERG. 

______________________ 

Before TARANTO, CLEVENGER, and CHEN, Circuit 

Judges.

TARANTO, Circuit Judge.

Bannum, Inc. protests decisions of the Bureau of Prisons of the United States Department of Justice to award 

two contracts to other bidders. In two actions brought in 

the Court of Federal Claims, Bannum complained that 

the awards were improper, alleging a common defect in 

the terms of the solicitations and, also, problems in the 

evaluation of competing bids. In each case, the Court of 

Federal Claims dismissed Bannum’s suit. Finding that 

Bannum’s proposal, by failing to commit Bannum to a 
BANNUM, INC. v. US 3

fixed price, was materially out of compliance with the 

terms of the solicitation, the court concluded that Bannum was not an “interested party” entitled to bring its 

protest under 28 U.S.C. § 1491(b).

We affirm the dismissals of Bannum’s suits, but on a 

different basis. We conclude that, because Bannum did 

not adequately present its objection to the solicitations 

before the awards, Bannum waived its ability to challenge 

the solicitations in the Court of Federal Claims. We also 

conclude that, on appeal, Bannum failed to preserve its 

separate challenges to the bid evaluations. We do not 

reach the “interested party” ground of the Court of Federal Claims’ decisions.

BACKGROUND

In the first of the two separately filed protest actions

before us on appeal, Bannum protests the government’s 

award of a fixed-price, indefinite-delivery, requirementstype contract to intervenor Dismas Charities, Inc., for the 

operation of a residential reentry center for federal offenders in Tupelo, Mississippi. The government published the solicitation, Request for Proposals (RFP) No. 

200-1168-SE, in February 2012, inviting interested bidders to submit initial proposals by April 23, 2012. Only 

Bannum and Dismas submitted offers. 

Over the next fifteen months, the government sent 

notices to the two bidders altering the contract requirements and requesting updated proposals. Amendment 

No. 5, issued in February 2013, added a requirement that 

the facility be operated in compliance with the Prison 

Rape Elimination Act of 2003 (PREA), 42 U.S.C. 

§§ 15601–15609. The government asked both bidders to 

sign the amendment and submit a final proposal revision, 

including any necessary changes in price. 

Whereas Dismas evidently signed the amendment 

without further ado, Bannum responded with a six-page 
4 BANNUM, INC. v. US

letter labeled “Final Proposal Revision #3 and AGENCY 

PROTEST,” in which it restated its earlier price proposal 

and noted that those prices “do not, and cannot, reflect 

any consideration for the effects of Amendment 5” because 

of the “enormous amount of information [that] is required 

prior to pricing this new contract requirement.” 14-5085 

J.A. 11109. Bannum attached a signed copy of Amendment No. 5, placing an asterisk next to the term requiring 

PREA compliance and stating: “Subject to and limited by 

Bannum’s response to [Final Proposal] #3 . . . submitted 

herewith; also, subject to Bannum’s reservation of all 

rights and protests.” Id. at 11115–16. Bannum repeated 

its objection four months later, when the government 

asked the bidders for final bids that confirmed their 

pricing after incorporating updated wage rates. On July 

19, 2013, the contracting officer evaluated the offers, and 

on August 26, 2013, the government awarded Dismas the 

contract.

In September 2013, after the award, Bannum filed a 

protest with the Government Accountability Office (GAO), 

alleging defects in the government’s evaluation of the 

proposals. When its GAO protest failed, Bannum filed 

suit in the Court of Federal Claims on February 19, 2014, 

seeking a preliminary injunction to prevent implementation of the contract. Bannum again challenged the bid 

evaluation as flawed and added a new allegation that the 

solicitation itself was “materially defective” because of the 

PREA-compliance requirement and the government’s 

refusal to provide pricing guidance. 14-5085 J.A. 26. The 

court denied Bannum’s request for preliminary relief. 

Bannum, Inc. v. United States, 115 Fed. Cl. 257, 275 

(2014). In a memorandum opinion issued several weeks 

later, the court granted motions (by the government and 

Dismas) to dismiss the case, concluding that Bannum was 

not an “interested party” under § 1491(b) because it 

submitted a bid that was materially out of compliance 

with the terms of the solicitation. Bannum, Inc. v. United 
BANNUM, INC. v. US 5

States, 115 Fed. Cl. 148, 155–56 (2014). Accordingly, the 

court lacked jurisdiction to hear Bannum’s suit. Id. at 

156. 

Bannum’s second action differs from its first only in 

ways we deem immaterial. The solicitation, RFP No. 200-

1182-SE, involves a different place of performance (Florence, South Carolina), a different competitor (the Alston 

Wilkes Society, Inc.), and several minor differences in the 

scope of work and evaluation criteria. But the procurement followed essentially the same path as the Mississippi procurement. The government amended the 

solicitation to require PREA compliance, and Bannum 

responded by explaining its inability to price PREA

compliance and clarifying that it “reserve[d] all rights to 

[requests for equitable adjustments], Claims, and Protests,” 14-5086 J.A. 10882, though without featuring the 

word “protest” as prominently as in its correspondence in 

the Mississippi case, id. at 10876. 

On August 8, 2013, the government evaluated the 

bids and awarded the contract to Alston Wilkes. Bannum 

filed a protest with the GAO on August 20, 2013, asserting only that the government’s evaluation process was 

flawed. The GAO denied the protest in November 2013, 

and Bannum filed suit in the Court of Federal Claims on 

January 16, 2014. As in the Mississippi action, Bannum

reasserted its challenge to the evaluation process and

newly argued that the solicitation itself was materially 

defective. 

Both sides moved for judgment on the administrative 

record, and the government moved separately to dismiss

for lack of jurisdiction. The court granted the government’s motion to dismiss, concluding that, because Bannum submitted a non-compliant proposal, it lacked the 

economic interest in the outcome of the award necessary 

to mount a protest under § 1491(b). Bannum, Inc. v. 
6 BANNUM, INC. v. US

United States, No. 14-CV-40, 2014 WL 1373739, at *4–5 

(Fed. Cl. Apr. 8, 2014). 

Bannum timely appealed both decisions. We have jurisdiction under 28 U.S.C. § 1295(a)(3). We consolidated 

the cases for oral argument and now decide them together. 

DISCUSSION

28 U.S.C. § 1491(b) grants the Court of Federal 

Claims “jurisdiction to render judgment on an action by 

an interested party objecting to” a solicitation or contract 

award made by a federal agency. We review the Court of 

Federal Claims’ legal conclusions de novo and its factual 

findings for clear error. Daewoo Eng’g & Const. Co. v. 

United States, 557 F.3d 1332, 1335 (Fed. Cir. 2009). 

Where, as here, no material facts are in dispute, we 

review the Court of Federal Claims’ determination of its 

own jurisdiction without deference. Taylor v. United 

States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). 

Because Bannum’s two distinct grounds for protesting 

the awards—(a) a defect in the solicitations and (b) defects in the bid-evaluation process—entail different remedies and are subject to different legal standards, see 

COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1382 

n.4 (Fed. Cir. 2012), we address them separately.

A 

A bidder that challenges the terms of a solicitation in 

the Court of Federal Claims generally must demonstrate 

that it objected to those terms “prior to the close of the 

bidding process.” Blue & Gold Fleet, L.P. v. United States, 

492 F.3d 1308, 1315 (Fed. Cir. 2007). If it cannot do so, 

the bidder “waives its ability to raise the same objection 

afterwards in a § 1491(b) action.” Id.; see also COMINT, 

700 F.3d at 1381–82. 
BANNUM, INC. v. US 7

It is undisputed that the government received notice 

of Bannum’s dissatisfaction with the PREA-compliance 

requirement before awards were made. We conclude, 

however, that mere notice of dissatisfaction or objection is 

insufficient to preserve Bannum’s defective-solicitation 

challenge. The solicitations at issue and the governing 

regulations put Bannum on notice of the formal requirements for filing a “protest” that would trigger an agency 

obligation of response and prompt resolution. Bannum 

did not comply with those requirements; nor did it pursue 

other available means of formal protest (e.g., to the GAO 

or the Court of Federal Claims) until after the awards. In 

these circumstances, it waived its solicitation challenges. 

Our waiver rule implements Congress’s directive in 

the Administrative Dispute Resolution Act (ADRA) of 

1996, Pub. L. No. 104-320, § 12, 110 Stat. 3870, 3874, that 

courts “shall give due regard to . . . the need for expeditious resolution” of protest claims. 28 U.S.C. § 1491(b)(3); 

see Blue & Gold, 492 F.3d at 1313. A waiver rule implements this statutory mandate by reducing the need for 

the “inefficient and costly” process of agency rebidding 

“after offerors and the agency ha[ve] expended considerable time and effort submitting or evaluating proposals in 

response to a defective solicitation.” Blue & Gold, 492 

F.3d at 1314 (internal quotation marks and citation 

omitted). In this context, clarity is not just readily 

achievable but important. Requiring that the prescribed 

formal routes for protest be followed (to avoid waiver) 

reduces uncertainty about whether the issue is joined and 

must be resolved, and thereby helps prevent both the 

wasted and duplicative expenses (of all bidders and the 

government) and the delayed implementation of the 

contract that would likely follow from laxer standards of 

timely presentation of solicitation challenges. 

In COMINT, we suggested that filing a formal, agency-level protest before the award would likely preserve a 

protestor’s post-award challenge to a solicitation, 700 F.3d 
8 BANNUM, INC. v. US

at 1382, as might a pre-award protest filed with the GAO, 

id. at 1383 (citing 4 C.F.R § 21.2 (“Protests based upon 

alleged improprieties in a solicitation . . . shall be filed

prior to bid opening or the time set for receipt of initial 

proposals.”) (emphasis added)). The rules applicable to 

both GAO protests and agency-level protests make clear 

why that should be so. The filing of a protest grants 

protestors certain remedies (a stay of award) and ensures

that the government will resolve the matter in a timely 

fashion. 

In the GAO, the act of filing a protest generally triggers an automatic stay of any award of the contract, 31 

U.S.C. § 3553(c)(1), and requires the GAO to issue a 

decision within 100 days, § 3554(a)(1); see also

§ 3554(a)(2) (requiring the Comptroller General to provided expedited review in certain cases). The Justice Department’s acquisition regulations, promulgated in 1998 

after an executive order directed agency heads to “provide 

for inexpensive, informal, procedurally simple, and expeditious resolution of protests,” Exec. Order No. 12979, 60 

Fed. Reg. 55171, 55171 (Oct. 25, 1995), provide similar 

guarantees. See 63 Fed. Reg. 16118, 16133 (Apr. 2, 1998). 

Bidders that file a formal protest are entitled to a scheduling conference within five days of filing, an automatic 

stay of the award pending disposition of the dispute, and 

a guarantee of prompt resolution of the protest. See 48 

C.F.R. § 2852.233-70(e), (i), (j).

Bannum does not dispute the availability of those 

means for presenting and ensuring responses to solicitation objections before an award is made, and at least two 

of the means—a GAO protest and an agency-level protest—were explicitly set forth in the solicitations at issue. 

Nor does Bannum contend that its objections amounted to 

a formal protest. Oral Argument at 11:45–12:05, Bannum, Inc. v. United States, 2014-5085, -5086 (“Bannum 

did not submit a formal protest but it did . . . multiple 

times ask for guidance.”). Bannum also has not chal-
BANNUM, INC. v. US 9

lenged any of the procedures made available to it as 

unduly burdensome or impractical, or asserted that there 

was good cause for excusing its failure to comply with 

them. See COMINT, 700 F.3d at 1382 (failure to mount a 

pre-award protest may be excusable where doing so “is 

not practicable”).

Having failed to follow any of the various protest procedures available to bidders for swiftly resolving objections to the terms of the solicitation, Bannum cannot raise 

the same challenge in the Court of Federal Claims now 

that an award has been made. Bannum waived the 

solicitation challenge by not properly raising it before the 

close of bidding. See Blue & Gold, 492 F.3d at 1314. We 

therefore need not address whether, regarding its solicitation challenge, Bannum is an “interested party” under our 

case law, which itself has taken into account, in certain 

circumstances, whether a party has timely presented and 

diligently pressed its protest. See, e.g., CGI v. United 

States, No. 2014-5143 (Fed. Cir. Mar. 10, 2015). 

B 

Our conclusion that Bannum waived its challenge to 

the terms of the solicitation does not dispose of the separate question of whether, once we accept the PREAcompliance requirement as beyond dispute, we should 

conclude that Bannum is nevertheless an “interested 

party” under § 1491(b) with standing to protest the allegedly defective evaluation processes. As the government 

agreed at oral argument, at least as a general matter, a 

bidder cannot be expected to challenge an agency’s evaluation of bids, in contrast to the terms of solicitation, until 

the evaluation occurs. See Oral Argument at 29:14–29:43. 

We need not address Bannum’s bid-evaluation challenges, 

however, because we conclude that Bannum has failed to 

preserve those challenges on appeal.

In its complaints, Bannum pleaded grounds for protest that fall into two categories: a defect in the solicita-
10 BANNUM, INC. v. US

tions; and defects in the bid-evaluation processes. The 

Court of Federal Claims in both cases ruled on Bannum’s 

protest without treating the two types of grounds for 

protest separately. It concluded in both cases that, because Bannum submitted a materially non-compliant bid, 

its offer could not form the basis for a proper award and, 

consequently, that Bannum lacked standing to challenge 

any aspect of the procurement process. 

On appeal, however, Bannum rests its argument for 

standing exclusively on its challenge to the solicitation, 

contending that, if it were to succeed in that challenge, 

“the [government] would be obligated to rebid the contract, and Bannum would have the opportunity to compete in the resolicitation.” 14-5085 Appellant Opening Br. 

7; 14-5086 Appellant Opening Br. 10 (identical language); 

see also 14-5085 Appellant Opening Br. 6, 9 (Bannum 

seeks “resolicitation of the contract”); 14-5086 Appellant 

Opening Br. 11, 12. Bannum has not argued to us that 

the denial of standing must be reversed, in any event, as 

to its defective-evaluation challenges, which it did not 

meaningfully mention in its briefs on appeal—either in its 

opening briefs or, when responding to the government’s 

waiver argument, in its reply briefs. Bannum has not 

contended that it has standing independent of the resolicitation remedy it seeks or that resolicitation would be the 

result of a successful challenge to the evaluation processes. It has focused entirely on the solicitation challenge 

and has not asserted that, even if it cannot press that 

challenge, it nevertheless is entitled to reversal of the 

denial of standing to press its evaluation challenges. 

“An issue that falls within the scope of the judgment 

appealed from but is not raised by the appellant in its 

opening brief on appeal” may properly be deemed waived. 

Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383 

(Fed. Cir. 1999); see Becton Dickinson & Co. v. C.R. Bard, 

Inc., 922 F.2d 792, 800 (Fed. Cir. 1990). We see no reason 

to depart from that practice here.
BANNUM, INC. v. US 11

AFFIRMED